Earlier this evening, Judge Nina Gershon issued a preliminary injunction barring the government from enforcing a law that bars any Federal money from going to the controversial community group ACORN, or any of ACORN's "affiliates, subsidiaries, or allied organizations". Gershon's ruling will remain in effect while ACORN's lawsuit challenging the law is active.
Predictably enough, the decision has sparked an epidemic of exploding Conservative heads, with Representative Darrell Issa (R-CA) leading the charge:
“On the same day that ACORN’s violation of Delaware state lobbying laws was revealed, a liberal, Clinton-appointed activist Judge has ruled to usurp the prerogatives and authority of the United States Congress. This left-wing activist Judge is setting a dangerous precedent that left-wing political organizations plagued by criminal accusations have a constitutional entitlement to taxpayer dollars. The Obama Administration should immediately move to appeal this injunction.”
There are already others on the right expressing outrage, and there will undoubtedly be more as word of the ruling spreads. It's inevitable that others will parrot Issa's misrepresentation of the ruling, probably very soon, and probably in multiple mainstream media outlets.
I'm less confident that those same media outlets will actually take the time to inform their audience about what the judge's ruling actually does and doesn't do, say, and mean. Since all of those things are important to understanding what's actually going on, it might be a good idea for us to look at them.
What the ruling does:
The preliminary injunction puts the law on hold for the duration of the lawsuit. The federal government cannot enforce the law, which means that the federal government cannot bar ACORN from receiving money. This means that the groups affected by the law will be allowed to continue working on contracts that it had already signed, contracts that had been awarded to those groups but which were put on hold following the bill's passage will move forward, and government agencies will review funding applications from the groups using the same standards that are applied to other applicants.
What the ruling does not do:
This ruling does not actually force the government to give any money to ACORN that they have not already committed. The ruling allows ACORN to apply for new or renewed grants and contracts from federal agencies, but it does not force the government to approve those applications, and it does not bar the government from denying the applications. It simply requires that the applications be evaluated on their merits, and not discarded simply because Congress doesn't like the group that submitted the application.
What the ruling says:
The ruling says that the judge thinks that it is likely that as the case moves forward, ACORN will succeed in showing that the law is an unconstitutional bill of attainder. It indicates that the judge was not impressed with the government's argument that Congress was simply trying to protect the public's money from possible fraud and waste.
What the ruling does not say:
And this part is actually very important to understand:
The ruling does not say that ACORN did anything wrong, and it does not say that ACORN did nothing wrong. ACORN's actual conduct is not at all relevant in this case, so it was not examined in any detail in the ruling.
What the ruling means:
In practical terms, this ruling means that if the government plans on continuing to contest ACORN's claim, they've got a lot of ground to catch up. A preliminary injunction is only granted if the judge - who is almost certainly going to be the same judge who continues to hear the case - believes that the party that is requesting the injunction is likely to succeed on the merits of the case.
What the ruling does not mean:
This ruling does not actually mean that ACORN has a constitutional right to your tax dollars. It means that Congress does not have the right to bar ACORN from receiving money from the federal government that they've already earned through fulfilling contractual obligations, and it means that Congress does not have the right to unilaterally decide to punish ACORN for alleged wrongdoing by barring them from applying and competing for additional contracts.
There are procedures in place for suspending contracts and barring contractors from receiving new ones when it has been shown that fraud or other illegal activities have occurred. The ruling does not prohibit the government from using those procedures to bar ACORN from receiving funds.
IANL, but there was absolutely nothing in the ruling that surprised me. Congress has never - as far as anyone can tell - passed a law barring a single named organization or group of organizations from receiving any federal money before. In doing that, they completely bypassed an extensive series of regulations that are designed to protect the public from corrupt contractors while simultaneously extending contractors due process protections. Along the way, they littered the legislative history of the bill with many different statements from many different elected officials, all of which indicated that Congress wanted to punish a group that they believed to be corrupt. Under the circumstances, it's hardly surprising that a federal judge believes that ACORN is likely to succeed in proving that this was an unconstitutional bill of attainder.
Surprisingly, a lot of people - including the Associated Press, which really, really, really should know better - appear to believe that the judge ruled that the law is unconstitutional. That is not the case. The judge ruled that she believes it is likely that ACORN will be able to show that the law is unconstitutional, and that they will be irreparably harmed by the law if it is enforced. That combination meets the requirements for a preliminary injunction, so the law is on hold while ACORN attempts to prove its case. The government, however, still has a chance to show that the law is constitutional.